Edward Hasbrouck – Page 28

Feb 14 2017

The right to anonymous pedestrian travel and protest

In a victory for the right to anonymous pedestrian travel and protest, the 5th Circuit Court of Appeals has reinstated a civil rights lawsuit brought by a protester who was arrested while holding a sign alongside a road in Stafford, Texas (near Houston), and charged with violating Texas Penal Code § 38.02:

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

The opinion of the 5th Circuit panel in Jonathan Davidson v. City of Stafford, et al. breaks no new ground, but it’s an important reminder to the public and to police of the right to protest, the right to walk the streets and highways, the right to do so anonymously — and the potential liability of police who abridge those rights.

State and local ID laws vary greatly, and it’s important to know the law in your jurisdiction. We reiterate the importance of knowing the law in your jurisdiction and seeking legal advice in advance (this blog is not legal advice) if you anticipate being questioned by police.

As we read this decision, however, the key lesson it reinforces is that laws like Texas Penal Code § 38.02 which require people who are arrested to identify themselves can’t be used to bootstrap a general requirement for anyone on the street to identify themselves to police on demand. Such a law imposes an obligation to identify oneself only if there is probable cause for police to believe that some other law was violated.

Without some other lawful basis for an arrest, such an ID-if arrested law creates no obligation for a pedestrian or protester to identify herself to police.

Feb 01 2017

Carrier sanctions kill. Airlines collaborate.

[Sign carried by Dan Malashock at San Francisco International Airport, January 29, 2017. Photo by Ruth Radetsky.]

Since the start of our work against restrictions on freedom to fly, well before September 11, 2001, we’ve been wondering what further outrage it would take to provoke mass protests at airports, and when that would finally happen.

Now we know. Thousands of protesters (including at least one of President Trump’s fellow billionaires) filled international airports across the country for several days and nights starting last weekend, in reaction against President Trump’s executive order to detain and deport any arriving non-US citizen known to be a citizen (even a dual citizen) of one of seven publicly blacklisted Muslim-majority countries: Iraq, Iran, Libya, Somalia, Syria, Sudan, and Yemen.

We’ve been talking about related issues for years. Now that they are out in the open, the question is what the outraged public will do, at whom the outrage will be directed, and how airlines — yes, airlines, and not just governments — will respond.

For what it’s worth, it’s unclear whether this executive order would apply to an asylum seeker who renounces their original citizenship in one of the blacklisted countries, even one who makes that renunciation at the check-in counter or in flight, and thereby arrives in the US stateless. This may seem a far-fetched scenario, but it is common for stateless asylum seekers to use “invalid”, forged, or fraudulent documents to board flights, and then to destroy those documents in flight so as to arrive without papers. Deportation of any stateless person, and most of all a stateless asylum seeker, is especially problematic under international human rights law. But that’s the least of the problems with President Trump’s executive order.

Here are some key things we’ve learned from our work over the last 20 years that people — including those just now beginning to think about the right to fly, especially as it relates to immigrants, refugees, and asylum seekers — need to understand about what is happening, who is responsible, what will happen next, and what can be done:

Jan 29 2017

Trump repudiates agreement with EU on PNR data

In a panel discussion Wednesday at the Computers, Privacy, and Data Protection conference in Brussels, Edward Hasbrouck of the Identity Project pointed out that that both the so-called Privacy Shield and the EU-US agreement on transfers of Passenger Name Record (PNR) data from the European Union to the US government depend on non-treaty “promises”, “commitments”, “undertakings”, and executive orders by the Obama Administration.

These are not binding on President Trump, and there is no reason to expect Trump do anything just because Obama said he would do it.

Quite the contrary: President Trump has no intention of continuing many of President Obama’s policies, and every intention of reversing many of them — even if Trump continues others, such as mass surveillance, profiling of US citizens and foreigners, and reliance on executive orders to avoid the need for Congressional approval of his program, which Trump presumably will continue.

“As of this week, with Trump’s inauguration, the EU-US PNR agreement and Privacy Shield are dead letters. The only question is whether the Trump administration will officially renounce them, or whether it will simply ignore them,” Hasbrouck told the audience at CPDP.

The answer came just a few hours later the same day, when President Trump issued an executive order including the following:

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

The US recognized privacy as a human right when it ratified the International Covenant on Civil and Political Rights:

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence….

2. Everyone has the right to the protection of the law against such interference or attacks.

But as we have complained to the relevant UN treaty bodies, the US has flouted its obligations under this and other provisions of the ICCPR related to freedom of movement as a human right, and has provided no effective means of redress for these violations.

Instead, on this and other issues the US has acted as though there are no human rights, only privileges of US citizenship. President Trump’s executive order on privacy is only the latest official restatement of this longstanding and bipartisan US government position.

With this Presidential decree, the EU-US PNR agreement is dead.

The next question is when EU institutions will recognize this legal fact, and what they will do about it.

Jan 20 2017

Inspector General: TSA uses secrecy to avoid embarrassment

A report on the security of TSA operational IT and communications systems released last month by the DHS Office of the Inspector General (OIG) is prefaced with a scathing critique of the redactions demanded by the TSA in the censored public version of the report.

The OIG report found a pervasive lack of basic security measures and consciousness at TSA airport facilities: doors propped open or with locks taped off, unmonitored entrances, lack of logs of physical access to communication nodes and servers, lack of redundancy, etc.

But the TSA tried to keep the OIG from reporting on even those problems that at already been publicly reported, after TSA review and permission, in earlier OIG reports or other pages of the same report. The real point of the TSA’s censorship is not security but avoidance of public and Congressional debate and oversight.

Here’s what the DHS’s own internal auditor reported:

I must lodge an objection regarding the way that TSA has handled information in the report it considered Sensitive Security Information (SSI). Specifically, we issued the draft report, Summary Report on Audits of Security Controls for TSA Information Technology Systems at Airports, to the Department on September 16, 2016.

[W]e asked for agency comments, including a sensitivity review, within 30 days of receipt of the draft. On October 7, 2016, the Chief of the SSI Program provided the results of its sensitivity review, marking as SSI various passages in the report. The redactions are unjustifiable and redact information that had been publicly disclosed in previous Office of Inspector General (OIG) reports. I am challenging TSA’s proposed redactions to our summary report….

I can only conclude that TSA is abusing its stewardship of the SSI program. None of these redactions will make us safer and simply highlight the inconsistent and arbitrary nature of decisions that TSA makes regarding SSI information. This episode is more evidence that TSA cannot be trusted to administer the program in a reasonable manner.

This problem is well-documented. In addition to my previous objection to the handling of one of our reports, the House Committee on Oversight and Government Reform in 2014 issued a bipartisan staff report finding that TSA had engaged in a pattern of improperly designating certain information as SSI in order to avoid its public release because of agency embarrassment and hostility to Congressional oversight.

Jan 09 2017

IDP comments on TSA proposal to require ID to fly

Today the Identity Project and the Cyber Privacy Project filed comments with the Transportation Security Administration opposing a stealthy TSA proposal to start requiring ID to fly.

The TSA has long harassed people who try to fly without being required to show their “Papers, Please!” at TSA checkpoints.

But the TSA’s official position in court has always been that ID is not required to fly: “You don’t have to show ID to fly. You can fly without ID. We have a procedure for that.”

You can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about you obtained by the TSA from the commercial data broker Accurint, and (3) submit to more intrusive than standard search (“secondary screening”) as a “selectee”.

That’s the way it is, and that’s the way it’s been for years.

Now, as we reported in November of last year, the TSA is contemplating a new pattern and practice of preventing anyone from passing through a TSA checkpoint or getting on an airline flight unless either they have ID the TSA deems acceptable, or they reside in a state that the TSA deems sufficiently compliant with the REAL-ID Act.

Dec 25 2016

Obama Admin’s parting gift to foreign visitors: social media surveillance

In the Obama Administration’s parting gift to foreign visitors, the Office of Management and Budget (OMB) has approved the collection of social media IDs from foreign visitors to the US. As part of the online Electronic System for Travel Authorization (ESTA), tourists, business travelers, and foreign citizens visiting friends and relatives in the US are now being asked whether they have accounts on any social media platforms, and if so, their user names or IDs.

Dec 21 2016

“AFI” is the latest DHS name for “extreme vetting”

We’ve heard a lot of talk in recent months about “extreme vetting” of immigrants, Muslims, and foreign visitors to the US. But what does “extreme vetting” really mean?

“Vetting” of both domestic and international travelers — making predictive pre-crime decisions as to whether or not to allow them to travel — is already extreme, and already routine.

“Vetting” means examining people and deciding who to allow, and who not to allow, to do something.

Under DHS procedures that have been in place for a decade, no airline operating to, from, or within the US is allowed to issue a boarding pass or let you on a plane unless and until it has sent your personal information to DHS and received an individualized, per-passenger, per-flight “Boarding Pass Printing Result” (BPPR) message giving the airline “permission” to “allow” you to exercise your right to travel by common carrier. The default if DHS doesn’t respond is “no”, and both the algorithms used for the decision and the data put into that algorithmic black box are secret.

What could be more “extreme”? Manual strip searches for all travelers, instead of just virtual strip searches using as-though-naked imaging machines?

But as President-Elect Trump’s “extreme” rhetoric suggests, the government’s desire for surveillance and control of our movements is insatiable. It’s always possible to make yet another mirror copy of the government’s warehouse of metadada about our movements, disseminate it more widely, and pile on another layer of pre-crime profiling algorithms. More is always better, right — especially if you call it “intelligence”?

The latest replication and propagation of travel data, and the latest layer of traveler “vetting” tools, is the so-called “Analytical Framework for Intelligence” (AFI) operated by, or under contract to, US Customs and Border Protection (CBP). As we told Spencer Woodman of The Verge for his story today about AFI:

“When Trump uses the term ‘extreme vetting’, AFI is the black-box system of profiling algorithms that he’s talking about,” says Edward Hasbrouck of the Identity Project, a civil liberties initiative that focuses on the rights of travelers. “This is what extreme vetting means.”

DHS in general, and CBP in particular, have been playing a shell game for many years with their travel surveillance and control systems.

Government copies of airline reservations (Passenger Name Records) were first claimed to be part of a system of records called TECS, then declared to be part of a “new” system of records called the Automated Targeting System (ATS), although still stored in the TECS database. (Huh?) Now an additional mirror copy of all this PNR data (still stored in TECS and still also deemed part of ATS) is being created as part of another “newer” system of records known as AFI.

AFI is one several new user interfaces and front-ends to TECS data being developed for use by multiple DHS components including US Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) as part of a long-term “TECS modernization” project.

If you’re confused by all the acronyms and name changes, and don’t know which government files you should ask for or worry about, that’s exactly what DHS wants.

AFI itself has changed fundamentally and for the worse in the last few months, at least if we can believe what DHS says. It’s always been a suspicion-generating and guilt-by-association machine, but now it’s a much more powerful one. More powerful, to be clear, does not mean “better” or “more accurate”. It means, “capable of placing more people under suspicion” based on more intrusive data aggregation, data mining, and profiling. Here’s how:

Dec 15 2016

Controls on land travel vs. the right to free movement

In a partial but symbolically significant victory, the Belgian government has postponed a final vote in the national Parliament on legislation to require certain international railways to provide passenger name records (PNRs) to the government for surveillance and advance “vetting” of train travelers, as is already being done for air travelers between the EU, the US, and other countries.

(Text of the proposed law in French and Flemish/Dutch; report on first reading in Parliament; analysis and commentary in English; legislative history; legislative status.)

The Belgian proposal was approved by the anti-terror committee in Parliament despite a threat by the German national railway to suspend its high-speed services to Belgium if the bill passes, as well as other criticism.

One Belgian think tank, analyzing the proposal in the context of other anti-terrorism proposals, concluded that, “The creation of a Belgian PNR system is a good illustration of this dynamic: taking it as a given that it will facilitate the arrest of terrorists who are planning attacks is something of a fairy tale…. Social sciences, unlike astrology, is not about predicting the future.”

The decisive factor in the Belgian government’s decision to postpone the scheduled final vote in the national Parliament appears to have been intervention by the European Commission in response to a formal complaint by Access Now that the law would violate the right of EU citizens to move freely within the EU.

As with “rights” for US citizens that aren’t recognized as human rights for all, a decision by the EU or Belgium based solely on the rights of EU citizens falls short of full recognition of the right to travel. But so far as we know, this is the first time that the EU has blocked any proposed travel surveillance or control measure, in the EU or any of its members states, on the basis of the right to freedom of movement.

We hope that the Belgian government will withdraw its railway PNR proposal entirely, not leave it pending, and that other EU member states will take note of the incompatibility of measures like this with fundamental European and human rights principles.

Dec 08 2016

The rhetoric and reality of counterterrorism

Remarks by President Barack Obama on the Administration’s Approach to Counterterrorism, MacDill Air Force Base, Tampa, Florida, December 6, 2016:

Let my final words to you as your Commander-in-Chief be a reminder of what it is that you’re fighting for, what it is that we are fighting for…

The United States of America is not a place where some citizens have to withstand greater scrutiny, or carry a special ID card, or prove that they’re not an enemy from within. We’re a country that has bled and struggled and sacrificed against that kind of discrimination and arbitrary rule, here in our own country and around the world.

We’re a nation that believes freedom can never be taken for granted and that each of us has a responsibility to sustain it…. We are a nation that stands for the rule of law.

That sounds great in theory. But in practice?

Some citizens do have to withstand greater scrutiny. That’s the whole point of the pre-crime profiling that the Obama Administration has called “risk-based security” and that President-Elect Trump has called “extreme vetting”.
Under the REAL-ID Act and the TSA’s latest proposal, some citizens — those who want to exercise our right to freedom of movement and to air travel by common carrier — will have to carry a special “REAL-ID Act compliant” ID card and have our personal information added to a national ID database maintained by a private contractor that isn’t subject to government rules for transparency or accountability.
The DHS has held itself above the law, arguing that its actions should not be subject to judicial review and that it needs to be allowed to act secretly and unpredictably (i.e arbitrarily) in order not to reveal “rules” that would help terrorists “game” the system — as if asserting one’s legal rights was tantamount to terrorism.

We’ll be watching closely to see whether the gap between the rhetoric and reality of profiling, discrimination, rights, and rule of law widens or narrows under President-Elect Trump and his nominee for Secretary of Homeland Security, retired Marine Gen. John F. Kelly.

In the meantime, we’ll keep doing our part, as we encourage our readers to do theirs, to act on the President’s statement that “freedom can never be taken for granted and that each of us has a responsibility to sustain it.”

Nov 21 2016

TSA proposes to require ID to fly

Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

Papers, Please!

The Identity Project